Finding out you have been left out of a will, or left far less than you expected, can be very hard. Many people assume nothing can be done once a will is signed. In Australia, though, certain people can ask a court to change how an estate is divided. This is usually called a family provision claim.
Every state and territory has its own family provision law. Who can claim, how long you have and what the court looks at all differ. This article explains the main ideas in plain terms. It uses New South Wales and South Australia as examples.
Two different ways to challenge a will
There are two broad types of challenge. The first says the will itself is invalid. The second accepts the will is valid but argues it does not provide properly for someone. These are separate legal paths with different rules.
The Supreme Court of NSW makes the point clearly. A will is not set aside just because a person claims the testator did not make adequate provision for them. Instead, the court can make an order for provision out of the estate. That is the heart of a family provision claim.
Challenging whether a will is valid
The Legal Services Commission of South Australia lists several grounds for arguing a will is invalid. These include that the person lacked legal capacity, or did not understand the will when signing it. Others are that someone pressured them, signed it fraudulently or tricked them into signing. A will may also be challenged because it is not the last will, or because it was revoked before death.
If the Supreme Court finds a will invalid, it may fix the will or order a particular distribution of the estate. These claims depend on evidence about how and when the will was made. They need careful preparation from the start. Avoiding common estate planning mistakes while you are well can reduce the risk of this kind of dispute later.
Who can make a family provision claim
Only eligible people can apply, and the list varies by state. In NSW, section 57 of the Succession Act 2006 sets out who is eligible. The list includes a spouse, a de facto partner, a child and a former spouse. It also covers a person who was dependent on the deceased and a person in a close personal relationship with them. A grandchild who lived in the deceased’s household can also be eligible.
South Australia has its own list. The Legal Services Commission says it includes a spouse or domestic partner, a former spouse or domestic partner and a child. Stepchildren, grandchildren, parents and siblings can also qualify, but only in certain circumstances. For example, a sibling may be eligible if they cared for the deceased before death.
Children are eligible in both states, so the question of who a child’s parent is can matter. The rules for establishing parentage in child support claims sit in a different area of law. Former partners raise their own issues too. In South Australia, a former spouse or domestic partner cannot claim if a financial agreement made on or after 1 January 2025 was in force. That is one more reason to think carefully about a financial agreement when a relationship begins or ends.
What the court considers
Being eligible does not mean you will receive anything. In NSW the applicant must show the court they are in financial need, or that there is some other special reason for provision. The court can look at the size of the estate and the applicant’s age, health and financial position. It also considers how close the relationship was.
In South Australia the question is whether the will adequately provides for a person’s proper maintenance, education or advancement. The Legal Services Commission says the deceased’s wishes are the most important factor. The court also weighs the applicant’s vulnerability and dependence and their contribution to the estate. Their character and conduct are relevant too.
Time limits are short
Deadlines are one of the biggest traps in this area. In NSW a claim must be made within 12 months of the date of death, otherwise an extension of time must be sought. In South Australia an application generally has to be made within six months of the grant of probate or administration. Note that one is counted from death and the other from the grant.
Other states and territories set their own limits. In NSW a late claim needs an extension of time, and you should not assume one will be granted. If you think you may have a claim, get advice early. Waiting to see how the estate is handled can cost you the right to apply.
Costs and the risk of losing
Family provision cases can be expensive. The Supreme Court of NSW notes that daily hearing fees may apply. It also says unsuccessful applicants may have to pay the successful party’s costs. In South Australia the court has discretion to order legal costs paid from the estate or by individual parties.
The South Australian court can also order security for costs. The Legal Services Commission says this may happen where an application may lack merit, or a party will not negotiate with family members. A court fee is usually payable, although it may be waived in some cases. All of this makes a realistic early view of your claim worth having.
Practical steps if you are thinking of a claim
Start by getting a copy of the will and finding out whether probate has been granted. Write down the key dates, because they may decide if your claim is in time. Gather documents about your finances, your health and your relationship with the deceased. In NSW the court will generally require a disclosure statement under its practice note.
Separation can leave an older will out of date. A will made before a relationship ended may no longer reflect what the person wanted. Reading about the steps to take when you and your partner separate can help you see which documents need updating. Keeping your own will current is one of the best ways to spare your family a dispute later.
Frequently asked questions
Can I contest a will if I was left something?
Yes, being a beneficiary does not stop you making a family provision claim if you are eligible. The question is whether the provision made for you is adequate. The court looks at your needs and the other factors set by your state’s law.
Can a claim be made if there was no will?
In South Australia, yes. The Legal Services Commission says a claim may be made where someone believes the intestacy rules will not properly provide for them. An order can be made whether or not there is a valid will.
How long do I have to apply?
It depends on the state. In NSW it is 12 months from the date of death. In South Australia it is generally six months from the grant of probate or administration.
Will the whole will be thrown out?
Not because of a family provision claim alone. The Supreme Court of NSW says a will is not set aside just because someone claims inadequate provision. Invalidity is a separate type of challenge with its own grounds.
Family provision laws differ between states and territories and they change over time. This article is general information only and is not legal advice. Speak with a qualified lawyer about your own circumstances as soon as you can.
